Maynard v. Board of District Canvassers

• Decision Date: 24 December 1890
• Citation: 47 N.W. 756,84 Mich. 228
• Court: Michigan Supreme Court
• Parties: MAYNARD v. BOARD OF DISTRICT CANVASSERS.

47 N.W. 756

84 Mich. 228

MAYNARD v. BOARD OF DISTRICT CANVASSERS.

Supreme Court of Michigan

December 24, 1890

Mandamus.

T. J. O'Brien and C. A Kent, for relator. Edwin F. Uhl and F. A Baker, for respondent.

CHAMPLIN C.J.

The legislature, at its biennial, session of 1889, passed an act numbered 254, entitled "An act relating to the election of representatives to the state legislature in districts where more than one is to be elected." Section 1 reads as follows: "The people of the state of Michigan enact that, in all elections of representatives to the state legislature in districts where more than one is to be elected, each qualified elector may cast as many votes for one candidate as there are representatives to be elected, or may distribute the same among the candidates as he may see fit, and the candidates highest in votes shall be declared elected." Section 2 reads as follows: "The name or names of the person or persons for whom such elector intends to vote for as representative to the state legislature shall be written or printed, or partly written and printed, upon the ballots containing the names of the persons to be voted for for other state offices, and opposite the name of each person voted for as a representative to the state legislature there shall be written or printed in plain figures the number of the times the elector intends to vote for said person in whole numbers: provided, that in case the total of the numbers opposite the names of the person voted for exceed the total number of representatives to be elected from that district, the excess shall be taken from the person so voted for lowest on the ticket, and, should there still be an excess, then from the next above, until the numbers correspond." Section 3 repeals all laws and parts of laws inconsistent therewith. This act was approved by the governor on July 3, 1889. The City of Grand Rapids comprises one election district, and is entitled to elect two representatives to the state legislature. It is known as "The First Representative District" Fred A. Maynard, the relator, is an elector residing in that district, and in his petition, duly verified, in which he prays for a mandamus, states that on the 4th of November, 1890, there were in said election district 14,272 qualified electors duly registered according to law, and entitled to vote for the officers then to be elected, and to elect two representatives in the state legislature; and that under the laws of this state each of said electors was entitled to cast his vote for two representatives in the state legislature,-one vote for each, or to cast for one person for representative in said legislature two votes, as the elector might see fit. That at said election 13,000 of said qualified electors voted for the several officers to be elected. That at said election 5 persons were voted for as representatives, including relator. That the returns from the several voting precincts have been duly returned and filed. That such returns show that, for the office of representative, relator received 8,368 votes; Mr. White 7,358; Mr. Hayward, 7,074; Mr. Thaw, 623 votes; and Mr. Belden, 1 vote. That the inspectors in several of the precincts counted and returned the cumulative votes for relator as single votes only. That the board of district canvassers met, and from the returns made a statement that, for said office of representative, White received 7,358 votes; Hayward, 7,074 votes; Maynard, the relator, 5,374 votes; Thaw, 623 votes; and Belden, 1 vote,-and determined that White and Hayward were elected. That relator had the greatest number of votes, and was duly elected representative. That he bases his claim to election upon the legality of said cumulative votes, and avers that if every ballot having his name only for representative as aforesaid, with the statement "two votes" opposite the name as aforesaid, shall be counted as two votes, then he received more than 10,000 votes for said office, and this exceeded the votes given for any other candidate. He admits that, if said votes cannot be counted for him cumulatively,-that is, if every ballot having the statement "two votes," as aforesaid, for him is legal only as one vote, and must be so counted,-then that the said White and Hayward received a greater number of votes for representative at said election than the relator. He prays for a mandamus to compel the board of district canvassers to declare him elected, and that the chairman and clerk certify the same. The board of canvassers have answered, in which they deny that the cumulative votes cast for relator are legal, and deny that they should be counted. They set up that, previous to the election held on the 4th of November last, a convention of the Democratic party of the first representative district met, and placed in nomination Arthur S. White and John W. Hayward for the office of representatives in the state legislature, to be voted for upon a general ticket at the said election, and their names were so printed upon the tickets of that party. That a convention of the Republican party also met previous to the election, and placed in nomination only one person as representative, and that person was Fred A. Maynard, the relator, and his name was printed upon the tickets of that party with the words "two votes" opposite said name. That the ballots used at said election were furnished by the secretary of state of the state of Michigan for that purpose. That the returns from every precinct show a large excess of votes cast over the number of voters listed in the poll-lists. These poll-lists show that 13,164 electors voted in the city, and the return of votes show that 23,709 votes were cast,-an excess of 10,635 votes. The board claim that the act above recited is unconstitutional and void, and, so regarding it, they disregarded it, and declared those persons elected who had received the highest number of votes, counting one vote to a ballot. At the time of the argument, petitions for mandamus had been filed on behalf of four persons who claim to have been elected by cumulative votes to the office of representative in the city of Detroit, and counsel representing the parties in interest there were permitted to present their views upon the constitutionality of the law.

There has been in the latter half of the present century a growing desire to secure to minorities a proportionate representation in legislative and corporate bodies, and from time to time schemes have been advocated by those who have desired to bring about what they claim as a reform in existing modes of election to secure to the minority a just and proportionate representation. These schemes may all be reduced to four well-recognized classes, viz.: The "restrictive," which requires a certain number to be elected on one ticket and prohibits any elector from voting for the whole number to be elected. Thus, if four are to be elected, no one can vote for more than two. (2) The "cumulative," which requires three or more to be elected, and permits the elector to cast as many votes as there are persons to be elected, and to distribute votes among the candidates as the elector may choose. (3) The "Geneva," "free vote," or "Gilpin" plan. By this plan the districts are required to be large, and each party puts in nomination a full ticket, and each voter casts a single ballot. The whole number of ballots having been ascertained, that sum is divided by the number of places to be filled, and each ticket is entitled to the places in proportion to the number of votes cast by it, taking the persons elected from the head of the tickets. This plan doubtless comes the nearest to a proportionate representation of the minority of any plan devised which is practical for popular elections. It was originated by Mr. Gilpin in 1844, who advocated it in a pamphlet published in Philadelphia. It has never been adopted in this country, but has become the liste libre of Geneva, and is said to work well in Switzerland. The fourth plan is what is known as the "Hare" plan, or "single vote." This method is too intricate and tedious ever to be adopted for popular elections by the people. It requires successive counts and redistribution of the votes until an election is reached. The effort to realize minority representation by the use of the restrictive method was tried in Ohio, under an act passed in that state. The law was declared unconstitutional by the supreme court. State v. Constantine, 42 Ohio St. 437. That court held that it was the right of every elector to vote for every candidate or person to fill the offices provided by law to be elected by vote of electors, and a law which said that no person could vote for more than two of the four persons to be elected took away from the elector a substantial right guarantied to him by the constitution. In Pennsylvania, Mr. Buckalewe for many years advocated the adoption of the system of cumulative voting in order to secure minority representation; and, mainly through his efforts, in 1874, a provision was inserted in the constitution of Pennsylvania (article 16, � 4) permitting stockholders in corporations to vote cumulatively upon the shares of stock. It was held in Hays v. Com., 82 Pa. St. 518, that, as to corporations existing at the time the constitutional provision was adopted, the constitutional provision could not apply, because it interfered with and affected existing vested rights. In 1870 the state of Illinois adopted a new constitution, which contains this provision, (article 4,�� 7, 8:) "The house of representatives shall consist of three times the number of the members of the senate, and the term of office shall be two years. The representatives shall be elected in each senatorial district at the...